Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Appeals Court Rejects Use of Church for Public School Graduation

A Wisconsin school district's use of a Christian church for its high school graduation ceremonies violated the Constitution, a federal appeals court has ruled.

The full U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 7-3 that the practice of the Elmbrook school district near Milwaukee resulted in government endorsement of religion and coercion of students in violation of the First Amendment's prohibition against any government establishment of religion.

The July 23 decision in Doe v. Elmbrook School District reverses rulings for the school district by a federal district court and a three-judge panel of the 7th Circuit court. The panel had ruled 2-1 last September to uphold the church graduations last year, and the dissenting judge on the panel last year, Joel M. Flaum, was the author of Monday's majority opinion.

From 2000 to 2009, the school district used the auditorium of Elmbrook Church, an evangelical "megachurch" with many Christian symbols on display throughout its facilities, for the graduation ceremonies of its two high schools.

The practice was challenged by a group of non-Christian students and parents, whose suit alleged that during some graduation ceremonies the church operated its information booth or passed out evangelical literature.

"We conclude that conducting a public school graduation ceremony in a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join 'school ministries'—runs afoul of the First Amendment's Establishment Clause," Judge Flaum said in the majority opinion.

"In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise-secular education," Judge Flaum added. "Literally and figuratively towering over the graduation proceedings in the church's sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity."

Flaum said the majority holding was a narrow one, and it did not rule out all governmental use of church-owned facilities or even that public school graduation ceremonies might constitutionally be held in churches under some circumstances.

All three dissenters issued opinions, including Judge Kenneth W. Ripple, who had written the panel decision backing the school district's policy. Ripple said the majority had misapplied U.S. Supreme Court decisions on government and religion, and he essentially invited the Supreme Court to take up the case.

Judge Frank H. Easterbrook said that the Elmbrook school district merely wanted a large, air-conditioned auditorium for its graduation ceremonies and found one at the church. He said the majority's decision raises questions about whether church facilities could be used as public polling places.

Judge Richard A. Posner, who laced his dissent with references to Trappist monasteries, Michelangelo's Pieta, and Edward Gibbon's The History of the Decline and Fall of the Roman Empire, said "hypersensitivity is not a First Amendment principle" and offense taken by non-believers "can't be the criterion for an establishment of religion."

"The likely [effect] of today's decision will be ... to confirm the view of many religious Americans that the courts are hostile to religion," Judge Posner said.

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